This week, political and judicial conventional wisdom got knocked on its head by the Supreme Court’s 5-4 ruling upholding Obamacare. Gazing across the punditry landscape, the consensus is that nobody saw this coming and that many are shocked, SHOCKED to find out that politics may play a part in judicial decisions.
As if that’s news. That distinctive odor has permeated Supreme Court decisions since before the days of Franklin Roosevelt and the New Deal.
In the Obamacare case, Chief Justice John Roberts’ specific rejection of Congress’ use of the Commerce Clause to force commercial activity - the purchase of health insurance - is seen by some as the first such limitation in decades. And declaring unconstitutional the threat to deprive states of Medicaid funding if they don’t toe the line on expanding the program is hopeful. It remains to be seen how productive these new limits will be, however.
Stripped naked before God and everyone, the individual mandate now lives only as a tax. Despite President Obama’s earnest protestations to the contrary, the only way he gets his victory is to live with the fact that he will increase taxes to levels even the new socialist French government would protest. Can you hear Mitt Romney laughing?
Saying there are constitutional limits on the federal government’s power to regulate, but there aren’t any on its power to tax doesn’t tell me something I didn’t already know. So, what is to be done with what’s now ObamaTax, which will hit everyone’s pocketbook hard in January unless something political, like an election, happens in the interim?
Or was that the point all along?
Of course courts pay attention to politics – judges aren’t cloistered monks without access to the Internet or cable TV. Occasionally, they take note of what happens, as Justice Antonin Scalia did when he commented in his dissent in the Arizona immigration case on President Obama’s decision to stop deportations of some illegal aliens.
Many on the right hoped for an Obamacare decision like that in Schechter Poultry v. U.S., the 1935 case where the Supreme Court struck down Franklin Roosevelt’s National Recovery Act, a key component of the New Deal, as an un-constitutional overreach – the sick chicken that killed the blue eagle. No such luck.
Instead, we got a Gordian Knot similar to Oregon v. Mitchell, a 1970 case that drove everyone nuts. It involved a law, signed with grave misgivings by President Richard Nixon, lowering the voting age to 18. Its opponents claimed it was invalid because individual states alone had the constitutional right to set qualifications for voting. Justice Hugo Black, ever the contrarian, broke a 4-4 tie and threw a monkey wrench into it all by siding with opponents for state and local elections, but with the supporters for federal elections for Congress and the presidency.
What a mess! Separate voter lists and ballots for under-21 voters drove election officials nuts nationwide. The result was the 26th Amendment, which set 18-years-of-age as the national voting age. The court – really, Justice Black - punted a political question, amending the Constitution, back to the political process as if to say “Don’t ask us to do your political dirty work for you.”
Was Chief Justice Roberts, the “surprise” conservative vote in favor of Obamacare, channeling Hugo Black? Who knows, and who cares. While day-after divinations of his opinion focus on armchair amateur psychoanalysis of the Chief Justice – The National Review’s Jonah Goldberg suggested consulting the entrails of a goat – what matters is the political hand he dealt. Whether he did it intentionally doesn’t change the cards.
Roe v. Wade is what happens when a court trumps the political process to impose by judicial fiat what should be the result of the political process. Instead of resolving anything, we’ve had nothing but arguments and even violence ever since the 1973 decision.
See Bush v. Gore, the Florida vote-count case that came out of the 2000 presidential election. It doesn’t matter that it was correctly decided since liberal anger and resentment will linger until the end of days.
But that hasn’t always happened. Chief Justice Earl Warren, who had many subsequent judicial sins for which he atones in the hereafter, came to the Supreme Court in the midst of deliberations on what became Brown v. Board of Education. Ever the politician – he was California’s governor before being appointed to the court – he used those skills to craft a unanimous decision outlawing “separate but equal” public schools, which went a long way toward creating a national consensus in favor of civil rights.
And then there’s the “switch in time that saved nine.” After Schechter, FDR concocted a scheme to pack the Supreme Court with supporters of his political agenda. In West Coast Hotel Co. v. Parrish, a 1937 decision out of Wenatchee, WA involving a hotel maid and a state minimum wage law for women, Justice Owen Roberts (no known relation), up until then a staunch opponent of economic-regulation legislation, sided with four others on the Court to uphold the statute. In one fell swoop, the Court’s died-in-the-wool opposition to political efforts to address the Great Depression, rightly or wrongly made, stopped.
Some say Roberts switched sides as a result of judicial arm twisting by then-Chief Justice Charles Evans Hughes. Whatever. The only thing that mattered on a practical level is that he switched sides. Roosevelt didn’t have further political trouble from the Supreme Court, and his court packing scheme disappeared.
Get a unanimous agreement or get on the side of the prevailing winds. If that’s not possible, then screw it up so badly that those who should be solving the problem – politicians and voters – get off the dime and get to work. By design or by default – you can speculate all day and into the night which applies to Chief Justice Roberts - that’s the lesson from history.
Courts work in terms of process as much as product. How a decision is arrived at and how it will be seen by future generations of lawyers and judges who wrestle with issues unimaginable today matters to them. They don’t like to get involved in issues best handled through the political process, and they shouldn’t. Obamacare and the ObamaTax qualify, ergo it’s back to the political drawing board.